FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN M. FRANCE, No. 13-15534
Plaintiff-Appellant,
D.C. No.
v. 4:10-cv-00574-
JGZ
JEH JOHNSON,* Secretary,
Department of Homeland Security,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Argued and Submitted
June 9, 2015—San Francisco, California
Filed August 3, 2015
Before: Barry G. Silverman, Ronald M. Gould,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Gould
*
Jeh Johnson is substituted for his predecessor, Janet Napolitano, as
Secretary of the Department of Homeland Security, pursuant to Federal
Rule of Appellate Procedure 43(c).
2 FRANCE V. JOHNSON
SUMMARY**
Age Discrimination in Employment Act
The panel reversed the district court’s summary judgment
in favor of the United States Department of Homeland
Security in an action by a border patrol agent alleging
violation of the Age Discrimination in Employment Act
(“ADEA”).
The plaintiff alleged that the agency’s decision to not
promote him was age discrimination in violation of the
ADEA.
The panel held that the plaintiff established a prima facie
case of age discrimination. Specifically, the panel adopted
the Seventh Circuit’s approach which held that an age
difference of less than ten years between the plaintiff and the
replacements creates a rebuttable presumption that the age
difference was insubstantial. The panel concluded that the
plaintiff, although less than ten years older than his
replacements, established a prima facie case of age
discrimination by showing that the agency considered age in
general to be significant in making its promotion decisions,
and that the Tucson Chief Patrol Agent considered plaintiff’s
age specifically to be pertinent in considering plaintiff’s
promotion.
The panel agreed with the district court’s conclusion that
the agency articulated legitimate, nondiscriminatory reasons
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FRANCE V. JOHNSON 3
for not selecting plaintiff, namely, that plaintiff’s
qualifications did not meet the leadership and judgment
required of the GS-15 positions.
The panel held that the district court erred in granting
summary judgment, and in finding that plaintiff did not show
a genuine dispute of material fact on whether the agency’s
nondiscriminatory reasons were pretextual. Specifically, the
panel held that there was a genuine dispute of material fact as
to whether the Chief Patrol Agent influenced or was involved
in the hiring decisions of the GS-15 positions, despite that he
was not the final decisionmaker. The panel also held that the
district court erred in finding that the Chief Patrol Agent had
a limited role in the decisionmaking process. Finally, the
panel held that the district court erred in not considering the
Chief Patrol Agent’s retirement discussions with plaintiff in
assessing whether the articulated nondiscriminatory reasons
were pretextual.
COUNSEL
Jeffrey H. Jacobson (argued), Jacobson Law Firm, Tucson,
Arizona, for Plaintiff-Appellant.
Robert L. Miskell (argued), Assistant United States Attorney,
Appellate Chief, John S. Leonardo, United States Attorney,
District of Arizona, Tucson, Arizona, for Defendant-
Appellee.
4 FRANCE V. JOHNSON
OPINION
GOULD, Circuit Judge:
John France appeals the district court’s entry of summary
judgment in favor of the United States Department of
Homeland Security in this action alleging violation of the
Age Discrimination in Employment Act (“ADEA”).1 We
review a grant of summary judgment de novo. See Pac.
Shore Props., LLC v. City of Newport Beach, 730 F.3d 1142,
1156 (9th Cir. 2013). Viewing the evidence in the light most
favorable to France, the non-moving party, we must decide
whether there are any genuine disputes of material fact and
whether the district court correctly applied the substantive
law. See Olsen v. Idaho St. Bd. of Med., 363 F.3d 916, 922
(9th Cir. 2004). Because there are genuine disputes of
material fact and the district court erred in applying our
precedents, we reverse and remand for further proceedings.
I
France is a border patrol agent assigned to the Tucson
Sector of Border Patrol, an agency of the United States
Department of Homeland Security. In March 2007, the
newly appointed Tucson Sector Chief Patrol Agent, Robert
Gilbert, established a pilot program named “Architecture for
Success,” which split Assistant Chief Patrol Agents
(“ACPA”) into two categories: operations and administration.
ACPAs in administration would be assigned a pay grade of
GS-14, and ACPAs in operations a pay grade of GS-15.
1
The district court entered summary judgment on France’s age
discrimination and retaliation claims, but France only appeals the
judgment on his age discrimination claim.
FRANCE V. JOHNSON 5
Before the pilot program, all ACPAs, including France, were
at the GS-14 pay grade.
Four GS-15 ACPA positions were created as a result of
the pilot program, and a vacancy announcement for these
positions was posted in January 2008. Twenty-four eligible
candidates applied. The applicants’ ages ranged from 38 to
54 years, and France, 54 years old at the time, was the oldest.
The selection process commenced by ranking the applicants
by their scores from the Border Patrol Agent Competency
Based Promotional Assessments. Gilbert then invited twelve
candidates for interviews in Washington, D.C.
The panel of interviewers consisted of Chief Patrol
Agents Gilbert, Vitiello, and Fisher. After the interviews, the
panel selected six top-ranked candidates for final
consideration; France was not selected. Gilbert
recommended four of the six to Chief Border Patrol Agent
David Aguilar, who in turn recommended the same four
candidates to Deputy Commissioner Jayson Ahern. When the
selection was made, France was 54 years old, and the four
selected candidates, all of whom were in the top-ranked
group, were 44, 45, 47, and 48 years old.
In September 2010, France sued the agency, alleging that
the agency’s decision to not promote him was age
discrimination in violation of the ADEA. After discovery, the
agency moved for summary judgment and offered
nondiscriminatory reasons for not promoting France. Gilbert
said that France lacked the leadership and judgment for the
GS-15 positions. Aguilar gave six reasons why he did not
recommend promoting France, including France’s lack of
leadership, flexibility, and innovation.
6 FRANCE V. JOHNSON
In opposition to the agency’s motion for summary
judgment, France produced evidence to show that the
agency’s nondiscriminatory reasons were pretexts of
discrimination. The salient evidence was both direct and
circumstantial: First, France declared under the penalty of
perjury that in a staff meeting, Gilbert expressed his
preference for “young, dynamic agents” to staff the GS-15
positions. ACPA Alfred Salacup confirmed that he had heard
this comment from Gilbert. Second, France declared that
Gilbert had repeated retirement discussions with him, despite
France’s clear indications that he did not want to retire. For
example, during a meeting in June 2007, Gilbert asked if
France was interested in teaching firearms as a “rehired
annuitant” after retirement, but France said he did not want to
retire. A few months later, Gilbert again asked what France
wanted to do, and France said that he “was not going to retire
and that [he] was going to apply for the GS15 positions.”
France recalled that Gilbert had responded that if he were in
France’s position, he would retire as soon as possible. Third,
France offered testimony from ACPAs Nicley and Salacup
about Chief Border Patrol Agent Aguilar’s preference to
promote younger, less experienced agents.
The district court concluded that although France
established a prima facie case of age discrimination, he did
not demonstrate a genuine dispute of material fact on the
agency’s nondiscriminatory reasons for not selecting him.
The district court granted summary judgment in favor of the
agency. France timely appeals.
II
The ADEA makes it unlawful for an employer to
discriminate “because of [an] individual’s age.” 29 U.S.C.
FRANCE V. JOHNSON 7
§ 623(a)(1). The ADEA protects federal employees and
applicants for federal employment who are at least 40 years
of age. See id. §§ 631(a), 633a(a). In deciding a motion for
summary judgment, a court should not weigh the evidence or
determine the truth of the matter; it should only determine
whether there is a genuine dispute of fact for trial. See Abdul-
Jabbar v. Gen. Motors Corp., 85 F.3d 407, 410 (9th Cir.
1996). Summary judgment is improper if a reasonable jury
could find by a preponderance of the evidence that France is
entitled to a verdict in his favor. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986).
When a plaintiff opposing summary judgment presents
direct evidence of a discriminatory motive, we do not assess
the direct evidence in the burden-shifting framework set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). See Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d
802, 812 (9th Cir. 2004). “Direct evidence, in the context of
an ADEA claim, is defined as evidence of conduct or
statements by persons involved in the decision-making
process that may be viewed as directly reflecting the alleged
discriminatory attitude . . . sufficient to permit the fact finder
to infer that that attitude was more likely than not a
motivating factor in the employer’s decision.” Id. (internal
quotation marks omitted). Direct evidence, which standing
alone can defeat summary judgment, must be evidence
directly tied to the adverse employment decision. See, e.g.,
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121
(1985) (finding direct evidence of age discrimination when
the method of transfer available to a disqualified captain
depends on his age); Ezell v. Potter, 400 F.3d 1041, 1051 (7th
Cir. 2005) (finding direct evidence when the employer told a
new hire that they intended “to get rid of older carriers and
replace them with younger, faster carriers”); Enlow, 389 F.3d
8 FRANCE V. JOHNSON
at 812 (finding direct evidence of age discrimination when a
taxi driver 73 years old was terminated because the
company’s insurance policy did not cover employees older
than the age of 70); Am. Ass’n of Retired Persons v. Farmers
Grp., Inc., 943 F.2d 996, 1000 n.7 (9th Cir. 1991) (noting that
the McDonnell Douglas framework is inapplicable “when a
[pension plan] provision is discriminatory on its face”). In
contrast, stray remarks not directly tied to the decision-
making process are not direct evidence capable of defeating
summary judgment. See Merrick v. Farmers Ins. Grp.,
892 F.2d 1434, 1438 (9th Cir. 1990).
The district court concluded that France did not present
direct evidence to establish an inference of age
discrimination. This is a close question. Gilbert’s repeated
retirement discussions with France are not direct evidence
showing that Gilbert would not consider France for the GS-15
position, but rather circumstantial evidence showing Gilbert’s
bias in his decisionmaking process. On the other hand, the
statement by Gilbert about his preference for “young,
dynamic agents” to staff the GS-15 positions probably goes
beyond a stray remark, see Ezell, 400 F.3d at 1051, although
standing alone this evidence would be thin support to create
a genuine dispute of material fact. In this case where France
presented both some direct evidence and some circumstantial
evidence, it is most appropriate to consider the propriety of
summary judgment under the McDonnell Douglas
framework. See Shelley v. Geren, 666 F.3d 599, 607 (9th Cir.
2012); Enlow, 389 F.3d at 812.
FRANCE V. JOHNSON 9
III
A
Under the McDonnell Douglas framework, a plaintiff
must carry the initial burden to establish a prima facie case
that creates an inference of discrimination. McDonnell
Douglas, 411 U.S. at 802. If the employee establishes a
prima facie case, an inference of discrimination arises and the
burden shifts to the employer to produce a legitimate,
nondiscriminatory reason for its employment action. Id. If
the employer does so, the burden shifts back to the employee
to prove that the employer’s explanation is a pretext for
discrimination. Id.
We first address whether France has established a prima
facie case of age discrimination. “In a failure-to-promote
case, a plaintiff may establish a prima facie case of
discrimination in violation of the ADEA by producing
evidence that he or she was (1) at least forty years old,
(2) qualified for the position for which an application was
submitted, (3) denied the position, and (4) the promotion was
given to a substantially younger person.” Shelley, 666 F.3d
at 608. The agency does not dispute that the first three
prongs were shown, but contends that the fourth prong was
not satisfied because the selected ACPAs were not
substantially younger than France.
At the time of the promotion decisions, France was 54
years old and the four selected ACPAs were 44, 45, 47, and
48 years old, so the average age difference between France
and the selected ACPAs was eight years. Were the eight-year
age difference all the evidence before us, it would not be
sufficient to satisfy the fourth prong. A majority of circuit
10 FRANCE V. JOHNSON
courts interpreting the fourth prong have held that an age
difference of less than ten years, without more evidence, is
insufficient to make a prima facie case of age discrimination.
See Grosjean v. First Energy Corp., 349 F.3d 332, 338–39
(6th Cir. 2003) (collecting cases from various circuits). The
Seventh Circuit has held that an age difference of less than
ten years creates a rebuttable presumption that the age
difference is insubstantial. Hartley v. Wisc. Bell, 124 F.3d
887, 893 (7th Cir. 1997).
We agree that it is a reasonable and workable rule, so we
adopt the Seventh Circuit’s rebuttable presumption approach.
We hold that an average age difference of ten years or more
between the plaintiff and the replacements will be
presumptively substantial, whereas an age difference of less
than ten years will be presumptively insubstantial.2 Id. Here,
the average age difference between France and the selected
ACPAs is eight years, which is presumptively insubstantial.
But our analysis does not end there. A plaintiff who is
not ten years or more older than his or her replacements can
rebut the presumption by producing additional evidence to
show that the employer considered his or her age to be
significant. Id. The plaintiff can produce either direct or
circumstantial evidence to show that the employer considered
age to be a significant factor.
2
We have previously applied this presumption and concluded that a 9.5
years’ average age difference between the workers hired and those laid off
was insufficient to establish a prima facie case of age discrimination. Diaz
v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1209 (9th Cir. 2008) (citing
Hartley, 124 F.3d at 893).
FRANCE V. JOHNSON 11
France declared under penalty of perjury that Chief
Gilbert explicitly expressed a preference for promoting
younger agents. ACPAs Nicley and Salacup also testified
that Chief Border Patrol Agent Aguilar preferred to promote
“younger, less experienced agents.” France further declared
that Chief Gilbert had repeated retirement discussions with
him soon before the posting of the GS-15 positions, in spite
of France’s personal inclination not to retire. In the total
circumstances presented opposing summary judgment, we
conclude that France, although less than ten years older than
his replacements, has established a prima facie case of age
discrimination by showing that the agency considered age in
general to be significant in making its promotion decisions,
and that Gilbert considered France’s age specifically to be
pertinent in considering France’s promotion.
B
The agency contends that it decided not to promote
France because France’s qualifications did not meet the
leadership and judgment required for the GS-15 positions.
Gilbert stated that France had a big mouth and did not know
“when to turn it on or off,” and these weaknesses caused him
to fail the interview. Aguilar gave six reasons why he did not
recommend France to Chief Ahern, including France’s lack
of leadership, flexibility, and innovation. France did not
challenge the legitimacy of the agency’s nondiscriminatory
reasons in his opening brief, and arguments not raised in the
opening brief are waived. Smith v. Marsh, 194 F.3d 1045,
1052 (9th Cir. 1999). We agree with the district court’s
conclusion that the agency has articulated legitimate,
nondiscriminatory reasons for not selecting France.
12 FRANCE V. JOHNSON
C
We come to the crux of this case. Once the agency has
articulated legitimate, nondiscriminatory reasons for its
decision, as it did here, the burden shifted to France to raise
a genuine dispute of material fact as to pretext to avoid
summary judgment. See Wallis v. J.R. Simplot Co., 26 F.3d
885, 890 (9th Cir. 1994). A plaintiff asserting age
discrimination can “demonstrate pretext in either of two
ways: (1) directly, by showing that unlawful discrimination
more likely than not motivated the employer; or
(2) indirectly, by showing that the employer’s proffered
explanation is unworthy of credence because it is internally
inconsistent or otherwise not believable.” Earl v. Nielsen
Media Research, Inc., 658 F.3d 1108, 1112–13 (9th Cir.
2011). France’s direct evidence, standing alone, is
insufficient to defeat the agency’s motion for summary
judgment. When the plaintiff has some direct evidence but
also must rely on circumstantial evidence to show pretext, we
treat direct and circumstantial evidence alike, Desert Palace,
Inc. v. Costa, 539 U.S. 90, 100 (2003), and we consider both
types of evidence cumulatively, Raad v. Fairbanks N. Star
Borough Sch. Dist., 323 F.3d 1185, 1194 (9th Cir. 2003).
We have said that the circumstantial evidence relied on by
the plaintiff must be “specific” and “substantial.” See
Goodwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir.
1998). There is some question whether that distinction for
circumstantial evidence is valid after the Supreme Court’s
Costa decision which placed direct and circumstantial
evidence on an equal footing. See Costa, 539 U.S. at 100;
Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018,
1029–30 (9th Cir. 2006). Indeed, this “specific and
substantial” standard “is tempered by our observation that a
FRANCE V. JOHNSON 13
plaintiff’s burden to raise a triable issue of pretext is hardly
an onerous one.” Earl, 658 F.3d at 1113 (internal citations
and quotation marks omitted). We have repeatedly held that
it should not take much for a plaintiff in a discrimination case
to overcome a summary judgment motion. See, e.g., Nigro v.
Sears, Roebuck & Co., 784 F.3d 495, 499 (9th Cir. 2015);
Diaz, 521 F.3d at 1207; Davis v. Team Elec. Co., 520 F.3d
1080, 1089 (9th Cir. 2008); Metoyer v. Chassman, 504 F.3d
919, 939 (9th Cir. 2007); Dominguez-Curry v. Nev. Transp.
Dep’t, 424 F.3d 1027, 1042 (9th Cir. 2005); Chuang v. Univ.
of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1124 (9th Cir.
2000). “This is because the ultimate question is one that can
only be resolved through a searching inquiry—one that is
most appropriately conducted by a factfinder, upon a full
record.” Chuang, 225 F.3d at 1124 (internal quotation marks
omitted).
The district court concluded that Gilbert’s discriminatory
statements were insufficient to create a genuine dispute of
material fact because Gilbert had a limited role in the ultimate
hiring decision. The district court erred in two respects.
First, as a matter of law, to create a genuine dispute of
material fact on pretext, a speaker of discriminatory
statements need not be the final decisionmaker of an
employment decision. See, e.g., Poland v. Chertoff, 494 F.3d
1174, 1182 (9th Cir. 2007); Dominguez-Curry, 424 F.3d at
1039–40; Mondero v. Salt River Project, 400 F.3d 1207, 1213
(9th Cir. 2005).
In Poland, referring to the “cat’s paw metaphor,” we held
that even if a subordinate employee with bias was not the
final decisionmaker, the plaintiff can establish a causal link
by proving that “the biased subordinate influenced or was
involved in the decision or decisionmaking process.”
14 FRANCE V. JOHNSON
494 F.3d at 1182. Here, France produced evidence showing
Gilbert’s influence and substantial involvement in the hiring
decisions, including (1) that Gilbert was the person who
created the GS-15 positions in the first place; (2) that other
interviewers deferred to Gilbert because he will be
supervising the promoted ACPAs; and (3) that Gilbert
recommended the four finalists to Chief Aguilar, who then
recommended the same people to Deputy Commissioner
Ahern. Even though Aguilar and Ahern had the authority to
change the finalists recommended by Gilbert, they did not do
so, and in the total circumstances Gilbert’s recommendations
had substantial influence on the decision made, because both
Aguilar and Ahern deferred to Gilbert’s recommendation. A
reasonable jury could infer that Gilbert—the subordinate
employee with a discriminatory animus—was involved in and
influenced the hiring decisions.3 We conclude that there is a
genuine dispute of material fact as to whether Chief Gilbert
influenced or was involved in the hiring decisions of the GS-
15 positions, despite that he was not the final decisionmaker.
Second, the district court erred in concluding that Gilbert
had a limited role in the hiring decision. Gilbert was the
person who established the Architecture for Success pilot
program and who created the GS-15 positions for which
France applied. Also, Vitiello, one of the three interviewers,
said that he deferred to Gilbert at the interview because
Gilbert would be supervising the selectees in the Tucson
Sector. Although Aguilar had the authority to change the
3
In Poland, 494 F.3d at 1182, the higher level decisionmaker was not
biased; only the subordinate was biased. The circumstances here are
stronger for France because the higher level decisionmaker, Aguilar, was
also shown to have some ageist bias. ACPAs Nicley and Salacup testified
that Aguilar preferred to promote younger, less experienced agents.
FRANCE V. JOHNSON 15
finalists selected by Gilbert, Aguilar did not change them and
deferred to Gilbert’s selection. A reasonable jury could infer
that Gilbert’s role in the decisionmaking process was
significant and influential. The district court should view the
evidence and draw all inferences in the light most favorable
to France, the non-moving party; the finding of fact, to the
extent it runs contrary to the inferences that could have been
drawn in favor of France, is inappropriate. See Zweig v.
Hearst Corp., 594 F.2d 1261, 1264 n.3 (9th Cir. 1979). We
conclude that the district court erred in finding that Gilbert
had a limited role in the decisionmaking process.
Also, the district court did not consider Gilbert’s repeated
retirement discussions with France in assessing whether
Gilbert’s articulated nondiscriminatory reasons were
pretextual. Although these retirement discussions standing
alone are insufficient direct evidence of discrimination, the
district court erred in disregarding this evidence, which was
presented with circumstantial evidence, for the purpose of
determining the agency’s pretext. The timing of the
retirement discussions is significant: The retirement talks
occurred from June to November 2007; the GS-15 positions
were posted a couple of months later in January 2008 and the
promotion decisions were made in June 2008. The close
proximity in time could allow a reasonable jury to find by a
preponderance of the evidence that France’s non-selection
based on grounds other than age was pretextual. The district
court may not weigh the evidence at the summary judgment
stage but should focus on whether there are any triable issues
of fact. See Taybron v. City & Cnty. of S.F., 341 F.3d 957,
959 n.2 (9th Cir. 2003). The district court erred in granting
summary judgment resting on an erroneous application of our
precedents and in finding that France did not show a genuine
16 FRANCE V. JOHNSON
dispute of material fact on whether the agency’s
nondiscriminatory reasons were pretextual.
REVERSED and REMANDED.